Swallow v. Industrial Com'n of Ohio, 86-2078

• Citation: 521 N.E.2d 778,36 Ohio St.3d 55
• Decision Date: 06 April 1988
• Docket Number: No. 86-2078,86-2078
• Parties: SWALLOW, Appellant, v. INDUSTRIAL COMMISSION OF OHIO, Appellee.
• Court: United States State Supreme Court of Ohio

Page 55

36 Ohio St.3d 55

521 N.E.2d 778

SWALLOW, Appellant, v. INDUSTRIAL COMMISSION OF OHIO, Appellee.

No. 86-2078.

Supreme Court of Ohio.

April 6, 1988.

Relator-appellant, Lynn Charles Swallow, was injured on June 14, 1979, during the course of and arising out of his employment when he was struck on the back of the head by a crane hook. ¹ His claim for workers' compensation benefits was allowed for "status post-severe neurological deficit, due to head injury, with multiple intracerebral and brain stem hematomas, resulting in paralysis of all four extremities." As a result of this order, benefits were paid to appellant.

On August 29, 1983, appellant filed a motion requesting that he be awarded compensation pursuant to R.C. 4123.57(C) for loss of use of both arms and both legs. Ultimately, the Industrial Commission issued an order recognizing the claim for total loss of use of both arms and both legs. The commission also determined that appellant was permanently and totally disabled and that compensation for such disability should be awarded.

On January 15, 1985, appellant filed another motion requesting that his benefits awarded pursuant to R.C. 4123.57(C) be paid concurrently. By order issued March 11, 1985, a district hearing officer denied appellant's request on the basis that it was the policy of the commission to pay such awards consecutively. This order was affirmed by the regional board of review and further appeal was refused by the commission.

Appellant thereafter filed an action in the court of appeals seeking a writ of mandamus ordering concurrent payment of benefits to appellant for loss of use of both arms and legs pursuant to R.C. 4123.57(C).

On October 30, 1986, the court of appeals held that the policy determination of the commission that claimants are placed in a better position with compensation guaranteed over an extended rather than an abbreviated period of time was not a "clearly unreasonable determination." The court denied the writ on the basis that appellant had not shown a clear legal right thereto.

The cause is now before this court on an appeal as of right.

Tablack, Wellman & Jeren and John A. Jeren, Jr., Youngstown, for appellant.

Anthony J. Celebrezze, Jr., Atty. Gen., Helen M. Ninos and James A. Barnes, Columbus, for appellee.

PER CURIAM.

Former R.C. 4123.57(C) (currently R.C. 4123.57[B] ) provided, in pertinent part, that:

"In cases included in the following schedule the compensation payable per week to the employee shall be sixty-six and two-thirds per cent of his average weekly wage, but not more than a maximum of fifty per cent of the statewide average weekly wage as defined in division (C) of section 4123.62 of the Revised Code per week regardless of the average weekly wage, and not less than twenty-five per cent of the state-wide average weekly wage as defined in division (C) of section 4123.62 of the Revised Code per week and shall continue during the periods provided in the following schedule:

" * * *

"For the loss of an arm, two hundred twenty-five weeks.

" * * *

"For the loss of a leg, two hundred weeks." (Emphasis added.)

The statute does not specify whether the payments are to be made consecutively or concurrently.

Appellant urges that he is a single man with a limited life expectancy and no dependents. In the event of his death no survivor benefits would be forthcoming. He contends further that the award of a consecutive schedule of payments would force him to remain dependent on those family members who provide for his primary daily and medical care. He states that it is to his advantage to have each of the awards paid concurrently, so that he would receive two separate awards for the loss of each arm paid over two hundred twenty-five weeks and two separate payments for loss of both legs paid over two hundred weeks.

Appellant cites as support R.C. 4123.95, which provides, in pertinent part, that:

"Sections 4123.01 to 4123.94, inclusive, of the Revised Code shall be liberally construed in favor of employees and the dependents of deceased employees."

This court has held that "where a section of the Workmen's Compensation Act will bear two reasonable but opposing interpretations, the one favoring the claimant must be adopted. Section 4123.95, Revised Code." State, ex rel. Sayre, v. Indus. Comm. (1969), 17 Ohio St.2d 57, 62, 46 O.O.2d 297, 300, 245 N.E.2d 827, 830.

However, the commission is vested with the authority to formulate policies and standards for administering the Workers' Compensation Act. Section 35, Article II of the Ohio Constitution provides that:

" * * * Laws may be passed establishing a board which may be...